Shadow Regulation Withers In The Sunlight

Dot-Org Registry Suspends Secretive Copyright-Policing Plan

Yesterday, the group that runs the .org top-level domain announced that they will suspend their plans to create a new, private, problematic copyright enforcement system. That’s welcome news for tens of millions of nonprofits, charities, businesses, clubs, bloggers, and personal website owners that use .org. It’s also surprising, because most of those Internet users had no idea that a new copyright system, strongly reminiscent of the failed SOPA/PIPA Internet censorship bills, might be forced on them.

The possibility was easy to miss. Public Interest Registry, the nonprofit organization that administers the .org domain, never mentioned the new policy on its blog before yesterday, nor on the registrar websites where people actually register and renew their domain names. It was announced two weeks ago on a news website that covers the domain industry. And it was referenced in a proposal by the Domain Name Association, an industry group, titled “Registry/Registrar Healthy Practices,” a day later.

What was the proposal? Public Interest Registry has never provided any details, but the Domain Name Association’s plan [PDF], which is labeled “PIR Proposal,” calls for creating a system of private arbitrators who would hear complaints of copyright infringement on websites. The arbitrators would wield the power to take away a website’s domain name, and possibly transfer it to the party who complained of infringement. It’s based on a system already in place for resolving trademark disputes on domain names themselves, but it extends that concept to cover the contents of websites and services—something that should be no business of domain name companies. Crossing that line invites even more censorship. The existing process for trademark disputes is notoriously biased in favor of trademark holders, so it’s nothing to emulate.

The proposal, as revealed to the public this month, resembles the SOPA and PIPA bills, which were defeated in 2012 after a massive protest by Internet users. Like SOPA/PIPA, the “Healthy Practices” plan would co-opt one of the Internet’s core functions to serve the narrow interests of a politically well-connected industry. And like those bills, it would throw away the standards developed in court cases over decades for applying copyright law to websites. In some ways, the PIR Proposal goes even further than SOPA/PIPA would have, because whereas the latter would have blocked access to certain domains in the United States, the PIR Proposal would see those domain names deleted worldwide.

It’s not surprising that a plan developed in secret, without input from Internet users, would disregard users’ rights. As we’ve explained, truly “healthy” Internet governance requires inclusion, balance, and accountability, all of which were absent here.

Public Interest Registry did the right thing by hitting the brakes on this proposal. Its brief announcement today acknowledges the importance of good policy-development processes:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the ”Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.

Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice.

A good process must begin by asking whether new, private copyright enforcement mechanisms are needed at all, who benefits, and who will be harmed. It means asking whether the pursuit of copyright “pirates” justifies new architectures of censorship that can easily be turned to other ends, like the suppression of political dissent or news reporting, or the preservation of media monopolies. And it requires seeking the input of Internet users from all walks of life. Whether this takes place in existing organizations like ICANN or through new Internet governance initiatives, it can’t be done unilaterally, or secretly.

We’re glad Public Interest Registry won’t be continuing with this Shadow Regulation for now, and we encourage the Domain Name Association to drop its support for the plan, as well.

Update: The Domain Name Association also announced that it has "elected to take additional time to consider the details" of its copyright proposal.

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